University of Pennsylvania ScholarlyCommons CUREJ - College Undergraduate Research Electronic Journal College of Arts and Sciences March 2006 Advice and Consent: A Four Era Model Exploring the Evolution of the Appointments Clause… Brian Rosenwald University of Pennsylvania, [email protected] Follow this and additional works at: https://repository.upenn.edu/curej Recommended Citation Rosenwald, Brian , "Advice and Consent: A Four Era Model Exploring the Evolution of the Appointments Clause…" 25 March 2006. CUREJ: College Undergraduate Research Electronic Journal, University of Pennsylvania, https://repository.upenn.edu/curej/29. This paper is posted at ScholarlyCommons. https://repository.upenn.edu/curej/29 For more information, please contact [email protected]. Advice and Consent: A Four Era Model Exploring the Evolution of the Appointments Clause… Abstract This paper details the evolution of the Advice and Consent Clause of Article Two of the United States Constitution from the Constitutional Convention to the present. It also covers the history of failed Supreme Court nominations from John Rutledge in 1795 to present times. Finally, it analyzes the debate over whether or not it is appropriate for senators to consider a nominee's ideological bent when performing their advice and consent function. More broadly the paper tracks the ever-changing role of the Senate in the Advice and Consent process, and offers a new era-based model to organize the history of failed Supreme Court nominees. Keywords Advice and Consent Clause, Constitution, Failed Supreme Court Nominations, Supreme Court, Abe Fortas, John Rutledge, Senate, Robert Bork, Clarence Thomas, Constitutional Convention, Dilulio, John, John Dilulio, Political Science This article is available at ScholarlyCommons: https://repository.upenn.edu/curej/29 Advice and Consent: A Four Era Model Exploring the Evolution of the Appointments Clause… Brian Rosenwald March 25 th , 2006 Chapter 1 - Advice and Consent: Where Did it Come From, and What Did It Mean to the Framers? Article Two Sect ion Two of the United States Constitution states “… and he (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Offi cers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…” This clause is known as the Advice and Consent Clause or the Appointments Clause, and it represents one of the frustratingly vague phrases used by the Framers of the Constitution, which can mean many different things to many different people. Neither the debates from the Constitutional Convention, nor the implementation of the advice and consent process over the last two hundred and e ighteen years do much to clarify this incredibly important, yet highly oblique phrase. About the most that can be concluded from the debates, both historical and modern interpretations of the clause, and the history of the advice and consent process is tha t the Framers intended for the Senate to have a major role in the appointment of Supreme Court justices, and it has definitely played such a part. Indeed, the Senate has prevented more than one -fifth of the men and women nominated to the High Court from re aching it. To get more specific than that is quite difficult because the Senate has used an ever -evolving process to apply constantly changing criteria to evaluate each Supreme Court nominee. What one can say is that if the Framers of the Constitution did in fact intend for the Senate to play a robust role in the appointment of Supreme Court justices then they have once 2 again been proven quite wise. For it was only during the one era in which the Senate adopted an extremely deferential pose that the eight t ruly awful justices in the nation’s history made it onto the Court. The Convention To discern the intent of the men at the Constitutional Convention with regard to the Advice and Consent Clause of Article Two is almost impossible. The Committee of Eleven, whose job it was to deal with postponed matters, slipped it into Article Two when making its report to the Committee of the Whole on September 4 th .1 Debate over the wording was almost non -existent, and what little debate did occur focused mostly on the a ppointment of executive officers. 2 Gouverneur Morris did speak in favor of the new construction of the appointment power, saying, “‘as the President was to nominate and the Senate was to concur there would be security. As Congress now makes appointments th ere is no responsibility.’” 3 The Virginia Plan proposed by Edmund Randolph at the beginning of the Convention provided for the establishment of a National Judiciary to consist of ‘“one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature…’” 4 This clause was first debated on Tuesday, June 5 th , 1787, and was immediately opposed by James Wilson of Pennsylvania. He claimed that experience showed that intrigue, partiality, and concealment were the results of appointmen ts by legislatures. Wilson wanted to lodge the appointment power with the Executive. John Rutledge of South Carolina responded that he opposed a grant of so great a power to any single person, lest the people think the Framers were leaning too much towards monarchy. Benjamin Franklin gave a speech requesting that other options be laid upon the table, and then talked about how lawyers nominated judges in Scotland. More seriously, James 1 James Madison, Notes of Debates in the Federal Convention of 1787 (New York: W.W. Norton and Company, 1987), 569 & 575. 2 Ibid., 597 -599. 3 Madison, 598. 4 Ibid., 32. 3 Madison discussed his dislike for letting the Legislature select judges, because legislative talents were very different from those of a judge, and many of the members of the legislature would not be adequate adjudicators of the requisite qualifications; however, he was not satisfied with the Executive making appointments eithe r. He was inclined instead to give the appointment power to the Senate, which would be numerous enough to confide in, but also sufficiently stable and independent to follow deliberate judgments. Madison moved to strike the language giving the appointment p ower to the legislature, and to leave the section blank to allow for reflection. This motion passed by a nine to two vote. 5 On Wednesday June 13 th , Roger Sherman of Connecticut and Charles Cotesworth Pinckney of South Carolina moved to return the power to appoint judges to the National Legislature. Madison promptly objected on the grounds that many members of the legislature would be incompetent judges of the necessary qualifications, who would also be influenced too much by their partialities. He then move d that the Senate, a smaller and more select body, have the appointment power, which was agreed to nem. Con. 6 Two days later, William Patterson of New Jersey proposed his alternative to the Virginia Plan, and it gave the Executive, not the Senate, the appo intment power. 7 Similarly when Alexander Hamilton presented his alternative plan the following Monday, he failed to discuss the power of making judicial appointments, but he reserved the power to make cabinet appointments, and the power to nominate all oth er officers, including ambassadors, to the Executive, subject to the approbation or rejection of the Senate. 8 This might ordinarily make it appear as if the Advice and Consent Clause is simply another of the Convention’s trademark compromises, which to a certain extent it is. However, it 5 Ibid., 67 -68. 6 Ibid., 112 -113. 7 Ibid., 120. 8 Ibid., 138. 4 failed the only time it was actually proposed and voted upon as a stand -alone measure. On July 18 th , Nathaniel Ghorum of Massachusetts proposed that Judges be appointed by the Executive with the advice and consent of the 2 nd branch, as was done in Massachusetts. He claimed that this system had worked ‘“perfectly well’” for 140 years in his state. Luther Martin of Maryland, Roger Sherman of Connecticut, and Gunning Bedford of Delaware argued against the proposal. Primary amo ng their arguments was the idea that the Senate, being composed of members from each state, would be best informed of characters and therefore, as Martin put it, most capable of making a good choice. Bedford also worried that giving the Executive the appoi ntment power would allow him to win over the larger states by granting preference to their citizens. Ghorum countered that the Senate would have no better information than the Executive as individual senators would, like the Executive, have to trust inform ation about potential judges from the members of the candidates’ states. 9 Gouverneur Morris and James Wilson believed Ghorum’s proposal to be better than allowing the Senate to appoint judges, but they also made their own motion to allow the Executive to m ake appointments without any consultation with the Senate. That motion failed six states to two, and Ghorum’s motion also failed after a tied vote of four states to four. 10 Three days later, James Madison tried to revive Gorham’s proposal, but his twist on the concept, which featured the Executive nominating judges, who would be appointed unless opposed by two -thirds of the Senate, failed by a vote of six states to two. Among the arguments Madison made in favor of his proposal was that in the case of a flag rant error by the Executive, two -thirds of the Senate would surely join in utilizing its negative over the nomination. Additionally, he believed that the recent compromise providing for equal representation in the Senate meant that judges might be appointe d by a minority of the people, though by a majority of 9 Ibid., 315 -316.